STATE OF OHIO, PLAINTIFF-APPELLEE, v. GRAZYNA LATOCHA, DEFENDANT-APPELLANT.
CASE NO. 17-19-22
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
April 27, 2020
[Cite as State v. Latocha, 2020-Ohio-2664.]
Appeal from Sidney Municipal Court, Trial Court No. 19CRB002211. Judgment Affirmed.
Ralph A. Bauer for Appellant
Jeffrey L. Amick for Appellee
ΟΡΙΝΙON
{¶1} Defendant-appellant, Grazyna Latocha (“Latocha“), brings this appeal from the October 22, 2019 judgment of the Sidney Municipal Court sentencing her to ninety days in jail, with sixty suspended, and three years of probation after Latocha was convicted in a jury trial of Prohibitions Concerning Companion Animals in violation of
Background
{¶2} On April 26, 2019, Latocha was charged with Prohibitions Concerning Companion Animals in violation of
{¶3} Prior to trial, Latocha filed a motion to have the dogs released to her care and a hearing was held on her motion. At the hearing, evidence was presented that Latocha‘s home was currently unlivable as it had a tarp over parts of the roof and the electricity was not on. More importantly, testimony was presented that Latocha‘s home was not actually zoned to have a kennel, which was defined as four or more dogs on a single property for any reason, and Latocha far exceeded the number of dogs she could have in the city of Sidney. Considering this evidence and the charges against Latocha related to her care of the dogs, the dogs’ poor living conditions, and their health issues, Latocha‘s motion was denied and the dogs remained in the Dog Warden‘s custody.
{¶4} The case proceeded to a jury trial on August 29-30, 2019. After the presentation of evidence, the jury found Latocha guilty of both charges against her. Sentencing was set for a later date.
{¶6} On October 22, 2019, the matter proceeded to a sentencing hearing and a hearing on the State‘s forfeiture request. Ultimately the dogs were ordered forfeited and Latocha was sentenced to serve a ninety day jail term on each count, with sixty days suspended. The thirty day jail terms were ordered to be served concurrently. Latocha was also placed on probation, which included the condition that she not have any companion or breeding animal of any kind. A judgment entry memorializing Latocha‘s sentence was filed that same date. It is from this judgment that Latocha appeals, asserting the following assignments of error for our review.
Assignment of Error No. 1
Appellant‘s trial counsel rendered ineffective assistance of counsel, in violation of her constitutional rights.
Assignment of Error No. 2
Trial Court committed an abuse of discretion in ordering Appellant to forfeit her companion dogs and have no companion or breeding dogs in the future violating her right to due process and [it was an] unjustified taking of her property without compensation.
The guilty finding was not supported by legally sufficient evidence.
{¶7} We elect to address the assignments of error out of the order in which they were raised.
Third Assignment of Error
{¶8} In Latocha‘s third assignment of error, she argues that there was insufficient evidence presented to convict her.
Standard of Review
{¶9} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus; State v. Pountney, 152 Ohio St.3d 474, 2018-Ohio-22, ¶ 19 (an appellate court‘s function in a sufficiency review is not to determine if the evidence should be believed). Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id., following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Ford, --- Ohio St.3d ---, 2019-Ohio-4539, ¶ 317. “In deciding if the evidence was sufficient, we neither resolve evidentiary
Analysis
{¶10} In this case Latocha was convicted of one count of Prohibitions Concerning Companion Animals in violation of
(D) No person who confines or who is the custodian or caretaker of a companion animal shall negligently do any of the following:
(1) Torture, torment, or commit an act of cruelty against the companion animal;
(2) Deprive the companion animal of necessary sustenance or confine the companion animal without supplying it during the confinement with sufficient quantities of good, wholesome food and water if it can reasonably be expected that the companion animal would become sick or suffer in any other way as a result of or due to the deprivation or confinement[.]
{¶11} In order to convict Latocha at trial, the State presented testimony that members of the Sidney Fire Department responded to a fire at Latocha‘s residence
{¶12} One of the individuals who responded to the scene was firefighter/paramedic Chance Guisinger who overheard Latocha state that there were no people or pets in the house. Despite Latocha‘s statement, it was protocol for the fire department to conduct a search of the residence, so a team of three firefighters went inside wearing full “turnout” gear, which consisted of a coat, jacket, a hood, helmet, mask, and a breathing apparatus. Testimony indicated that because the fire was primarily on the roof at that point, there was little-to-no smoke on the first floor. Nothing of note was found on the first floor.
{¶13} The three firefighters then made their way into the basement, which was a large area splitting off through multiple doorways. Although there was little-to-no smoke in the basement either, there was between six inches to a foot of water because the water being used on the roof was coming down to rest there.
{¶14} The firefighters went in different directions in the basement and nearly simultaneously they all found dogs in kennels. Firefighter Quinten Pence located a cage with four to six puppies in it, Firefighter Guisinger and Firefighter Bryan Ramge each separately located kennels with dogs in them, some of those kennels being stacked on top of others. There were empty kennels as well. The firefighters
{¶15} Regarding what he observed, Firefighter Guisinger testified that the “dog kennels [were] stacked on top of each other with dogs in them and wire-tied shut.” (Tr. at 101). By stacked, Firefighter Guisinger clarified that at least “five or six” were stacked two-high, so that one kennel was on top of another. (Id. at 102). He testified that “normally dog kennels have a grate that you can put on underneath to catch the feces. They were not — there was no grates and it looked as though the dogs were standing just on grated wire and they would urinate or feces [sic] on top of the other dogs [below].” (Id.) He added that some of the dogs were alone in kennels while some were in doubles.
{¶16} Firefighter Guisinger indicated that the kennels were wired shut so tightly that he had to cut multiple times with a wire cutter to get them open. He testified it looked like the dogs had been locked inside for months because there was not a regular sliding locking mechanism utilized on the kennels; rather there were wires holding the kennels shut that looped around multiple times.
{¶17} Firefighter Guisinger testified that once the cages were open the dogs were “filthy.” (Tr. at 103). He testified that some of the dogs looked “malnourished but they — there was feces everywhere.” (Id. at 103-104). He strongly emphasized that the dogs were covered in feces.
{¶19} Firefighter Ramge also saw a dog with “red tissue coming from coming from her vaginal area, and it was discharged down to her legs.” (Tr. at 165). Further, he observed a dog with a bulging eye, and he saw scars on the dogs’ feet that looked like they were white in color, thus appearing older. Firefighter Ramge testified he saw puppies swimming on each other‘s backs to stay above the water in the basement.
{¶20} After the firefighters cut the wires on the cages they moved the dogs to a detached garage. Firefighter Pence and Firefighter Ramge both noted how much feces they observed in the basement and in/around the cages. Firefighter Ramge testified that he saw some feces stuck on the top of one of the cages from the dog that was in the cage above, and he confirmed that his turnout gear smelled awful from handling the dogs.
{¶22} The veterinarian, Dr. Amanda Wagner, went to the shelter and examined the dogs after they arrived. Because of the fire she was initially concerned with smoke inhalation or potential fire burns. Dr. Wagner testified that she handled each dog personally. She testified that the dogs were wet and that they smelled of urine and feces such that she carried a towel to use between dogs.
{¶23} Dr. Wagner testified that while there were no critical emergencies, there were a number of issues with the dogs that needed to be addressed in the short term. She noted that two dogs had vaginal hyperplasia and one of those two was borderline for a full “vaginal prolapse,” which she defined.
{¶24} Another dog had a progressive eye disease, though the eye was already dead. Dr. Wagner testified that the eye condition would have taken at least a week to get to that point, that the dog was likely experiencing pain and suffering before the eye died, and that the condition would have been readily apparent to anyone
{¶25} Dr. Wagner testified that of the twelve adult dogs she examined three males and three females had significant enough maladies to be noted, and that was an abnormal number of dogs with serious health issues. However, she testified that the dogs did not look malnourished. Dr. Wagner also testified that she had vaccinated a litter of puppies for Latocha a little over a month before the fire, but there is no indication she had ever dealt with the adult dogs.
{¶26} Deputy Ward testified that the cruiser used to transport the dogs to the shelter had to be extensively scrubbed because of how dirty the dogs were. She also testified that all of the dogs needed baths the morning that they were brought into the shelter. In addition, Deputy Ward noted that one of the puppies died after its first night in the shelter. Deputy Ward spoke with Latocha at the scene and Latocha said the dogs got veterinary care in Dayton but she could not recall the name of the vet.
{¶27} Latocha‘s counsel challenged the testimony of the firefighters on the basis that they had all written reports in the days after the incident but the reports did not mention certain things such as how dirty the dogs were or how they smelled
{¶28} At the conclusion of the testimony, the jury found Latocha guilty of both counts of Prohibitions Concerning Companion Animals.
{¶29} On appeal, Latocha argues that there was insufficient evidence presented to convict her. Specifically, she contends that the evidence was insufficient to support a finding that her dogs were deprived of necessary sustenance or that the dogs experienced any pain or suffering. She argues that the testimony from the witnesses indicated that the dogs were properly nourished, and the testimony of Dr. Wagner only indicated that the dog with the dead eye could have potentially improved with proper care.
{¶30} In analyzing the evidence, we emphasize that a dog, regardless of where it is kept, is defined as a companion animal pursuant to
{¶32} The testimony here indicated that some of the French Bulldogs were in the bottom of stacked cages with urine and feces falling on them from dogs who were in the stacked cage above. Further, the testimony indicated that the top cages had no bottom so in addition to defecating on the dogs below, the dogs on top also stood and laid on the wire.
{¶33} Moreover, according to Dr. Wagner, half of the adult dogs had notable maladies, some of them visibly distressing that would have been readily apparent to
{¶34} In order to convict Latocha of a violation of
{¶35} The State alleged that Latocha‘s failure to provide veterinary care to the dog with the protruding-and-now-dead eye constituted failure to provide necessary sustenance through proper veterinary care. Latocha counters that failure to provide veterinary medical care did not constitute a failure to provide “sustenance.” In addition, Latocha contends that Dr. Wagner‘s testimony actually supported an acquittal because Dr. Wagner only stated that the dog‘s eye could have possibly been saved with proper care.
{¶36} Latocha‘s argument ignores the testimony that the dog‘s eye injury would have been readily apparent to anyone caring for the dog, that treatment with
{¶37} Lastly, Latocha summarily argues in her brief that her convictions were against the manifest weight of the evidence without setting this issue out as its own assignment of error. In reviewing whether a verdict was against the manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the factfinder “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id.
{¶39} After reviewing the evidence in this case, we cannot find that the evidence weighs heavily against a conviction. We also cannot find that the factfinder clearly lost its way. While Latocha argues that the testimony regarding feces being in the bottom of cages was questionable, the jury was entitled to find the firefighters’ testimony credible. Therefore, Latocha‘s third assignment of error is overruled.
First Assignment of Error
{¶40} In Latocha‘s first assignment of error, she argues that she received ineffective assistance of trial counsel.
Standard of Review
{¶41} “To establish a claim for ineffective assistance of counsel, a defendant must show that counsel‘s performance was deficient and that counsel‘s deficient performance prejudiced him.” State v. Hernandez, 3d Dist. Defiance Nos. 4-16-27, 28, 2017-Ohio-2797, ¶ 12, citing State v. Phillips, 3d Dist. Allen No. 1-15-43, 2016-Ohio-3105, ¶ 11, citing State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to make either showing defeats a claim of ineffective assistance of counsel. State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697. (“[T]here is no reason for a court deciding an ineffective assistance of counsel claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.“).
Analysis
{¶42} Notably, the beginning of Latocha‘s “ineffective assistance” argument seems to be taken from a different brief, as it references alibi witnesses for a murder case. Nevertheless, after this detour into a seemingly different case, Latocha makes arguments that are related to the case sub judice, specifically contending that her trial counsel was ineffective for failing to submit any photographs showing the wire cages in which the dogs were housed. She indicates that this “clearly” would have indicated that the cages had pans in the bottoms of the cages and that they were appropriate for housing the French Bulldogs.
{¶43} Contrary to Latocha‘s argument, we do not know if the pictures exist at all as they are not included in the record. For this reason alone we could overrule Latocha‘s assignment of error as she cannot demonstrate error or prejudice.
{¶45} Furthermore, the firefighters in this case specifically testified that the cages in Latocha‘s residence did not have pans on the bottom and that dogs were getting covered in feces because of it. On the record before us we cannot find that Latocha demonstrated either that her counsel was ineffective or that she was prejudiced by any purported ineffectiveness. Therefore, her first assignment of error is overruled.
Second Assignment of Error
{¶46} In her second assignment of error, Latocha argues that the trial court abused its discretion by ordering her to forfeit her French Bulldogs and have no companion or breeding animals in the future.
Analysis
Pursuant to
A court may order a person who is convicted of or pleads guilty to a violation of section 959.131 of the Revised Code to forfeit to an impounding agency, as defined in section 959.132 of the Revised Code, any or all of the companion animals in that person‘s ownership or care. The court also may prohibit or place limitations on the person‘s ability to own or care for any companion animals for a specified or indefinite period of time.
{¶47} The preceding statute clearly and unambiguously provides a trial court with authority to require a defendant convicted of a violation of
{¶48} In this case the trial court heard arguments regarding forfeiture of the French Bulldogs, and ultimately ordered them to be forfeited. The trial court also ordered Latocha not to have any companion or breeding animals in the future. The trial court‘s decision is supported here by multiple facts: 1) the animals were found in appalling conditions; 2) when firefighters were at the scene, Latocha indicated there were not even any animals in her burning residence, establishing Latocha‘s callous nature towards the dogs; and 3) many of the dogs had serious maladies. Deputy Ward testified that the situation reminded her of a “puppy mill.”
{¶49} Given these facts, we find that the trial court‘s forfeiture order and the order regarding Latocha not having companion or breeding animals is supported by the evidence. Latocha‘s claim that the forfeiture of all the French Bulldogs served
Conclusion
{¶50} For the foregoing reasons Latocha‘s assignments of error are overruled and the judgment of the Sidney Municipal Court is affirmed.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
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